NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
_____________
No. 12-2390
_____________
UNITED STATES OF AMERICA
v.
DAMON JACKSON,
Appellant
_______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 07-cr-70)
District Judge: Hon. Alan N. Bloch
_______________
Submitted Under Third Circuit LAR 34.1(a)
January 10, 2013
Before: RENDELL, FISHER, and JORDAN, Circuit Judges.
(Filed: January 11, 2013)
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OPINION OF THE COURT
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JORDAN, Circuit Judge.
Damon Jackson appeals his sentence from the United States District Court for the
Western District of Pennsylvania for violating the terms of his supervised release. The
District Court determined that Jackson, who conceded to testing positive for marijuana
and cocaine, had violated the terms that he not possess any controlled substances and that

he not commit any federal, state or local crime. The Court concluded that his conduct
constituted a Grade B violation under 7B1.1(a) of the United States Sentencing
Guidelines, and it thus revoked his supervised release and imposed a sentence of eighteen
months imprisonment and eighteen months supervised release. We will affirm.
I.

Background
Jacksons underlying conviction was for conspiracy to possess with intent to

distribute less than 100 grams of heroin, in violation of 21 U.S.C. 846. His sentence
included 30 months imprisonment followed by 3 years supervised release. That
sentence was at the bottom of the guidelines range of 30 to 37 months imprisonment,
based on a total offense level of 15 and a criminal history category of IV. Two of the
terms of Jacksons supervised release required that he not commit any federal, state, or
local crime, and that he not unlawfully use or possess a narcotic or other controlled
substance. Jacksons term of supervised release began on May 13, 2009.
In September 2011, Jacksons probation officer filed a petition stating that Jackson
had violated the condition of his supervised release that he not commit a federal, state, or
local crime. The petition stated that Jackson had been charged by the Sharpsburg
Pennsylvania Police Department with simple assault, endangering the welfare of a child,
and harassment on August 23, 2011, and with disorderly conduct, false reports to law
enforcement, simple assault, harassment, and stalking on September 2, 2011. Jacksons
supervised release revocation hearing was originally scheduled for October 3, 2011, but
did not occur until May 10, 2012. During the interim, Jacksons probation officer filed a
supplemental petition informing the court that Jackson had tested positive for marijuana
2

and cocaine and thus had violated the condition of his supervised release that he not
unlawfully possess or use a controlled substance.
At the revocation hearing, Jackson admitted to the positive drug test for marijuana
and cocaine, but denied committing the other charges filed against him. Although his
counsel argued that the positive drug test should result in only a Grade C violation of his
supervised release,1 the District Court determined that the offense would constitute a
Grade B violation for committing a federal, state, or local offense punishable by more
than one year of imprisonment. Specifically, the Court concluded that Jacksons positive
drug test showed he was in violation of 21 U.S.C. 844,2 because it demonstrated that

The guidelines establish three grades of supervised release violations A, B, and

C in decreasing order of severity. U.S. Sentencing Guidelines Manual (U.S.S.G.)
7B1.1. A Grade A violation consists of conduct constituting (A) a federal, state, or
local offense punishable by a term of imprisonment exceeding one year that (i) is a crime
of violence, (ii) is a controlled substance offense, or (iii) involves possession of a firearm
or destructive device of a type described in 26 U.S.C. 5845(a); or (B) any other federal,
state, or local offense punishable by a term of imprisonment exceeding twenty years .
U.S.S.G. 7B1.1(a)(1). Controlled substance offense is a term of art under the
guidelines and means offenses prohibiting the manufacture, import, export, distribution,
or dispensing of a controlled substance (or a counterfeit substance) or the possession of a
controlled substance (or a counterfeit substance) with intent to manufacture, import,
export, distribute, or dispense. U.S.S.G. 4B1.2(b); see id. 7B1.1 cmt. n.3. A Grade
B violation is for conduct constituting any other federal, state, or local offense
punishable by a term of imprisonment exceeding one year. Id. 7B1.1(a)(2). And a
Grade C violation is for conduct that constitutes either a federal, state, or local offense
punishable by a term of imprisonment of one year or less, or a violation of any other
condition of supervision. Id. 7B1.1(a)(3).
2

In relevant part, 844 provides as follows:

It shall be unlawful for any person knowingly or intentionally
to possess a controlled substance unless such substance was
obtained directly, or pursuant to a valid prescription or order,
from a practitioner, while acting in the course of his
3

Jackson had been in possession of marijuana and cocaine. The Court further concluded
that, because of Jacksons underlying drug conviction, his possession was punishable
under 844(a) by a term of imprisonment exceeding one year. Therefore, his conduct
constituted a Grade B violation. U.S.S.G. 7B1.1(a)(2). The government did not pursue
the remaining violations alleged against Jackson because, based on the Courts finding of
a Grade B violation, there would have been no additional sentencing benefit from the
governments perspective, as the most serious offense, the false reports charge, was also a
Grade B violation.3

professional practice, or except as otherwise authorized by

this subchapter or subchapter II of this chapter. Any
person who violates this subsection may be sentenced to a
term of imprisonment of not more than 1 year, and shall be
fined a minimum of $1,000, or both, except that if he
commits such offense after a prior conviction under this
subchapter or subchapter II of this chapter, or a prior
conviction for any drug, narcotic, or chemical offense
chargeable under the law of any State, has become final, he
shall be sentenced to a term of imprisonment for not less than
15 days but not more than 2 years .
21 U.S.C. 844(a).
3

At the hearing, the government sought to present testimony regarding the simple
assault, endangering the welfare of a child, harassment, and disorderly conduct charges.
Jackson objected to that testimony because the government admitted that its witnesses
personal knowledge of the underlying crimes was based on an interview of the alleged
victim. The Court upheld that objection. The government was also prepared to present
testimony regarding Jacksons alleged false reports charge from the police officer to
whom Jackson allegedly lied. After the Court concluded that Jacksons possession of
marijuana and cocaine was a Grade B violation, the government withdrew the false
reports charge.
4

The District Court revoked Jacksons supervised release and sentenced him,
within his guidelines range, to eighteen months imprisonment4 followed by eighteen
months supervised release.
This timely appeal followed.
II.

Discussion5
Title 18 United States Code Section 3583 grants authority to courts to include

terms of supervised release when sentencing criminal defendants. 18 U.S.C. 3583(a).

Section 3583(e) provides that a court may revoke, extend, terminate, or modify such a
term of supervised release. Id. 3583(e)(1)-(4). More specifically, and relevant here,
3583(e)(3) permits a court to revoke a term of supervised release and require a
defendant to serve in prison all or part of the term of supervised release authorized by
statute for the offense that resulted in such term of supervised release, if the court finds
by a preponderance of the evidence that the defendant violated a condition of supervised
release. Id. 3583(e)(3). Revocation is required when the court concludes that a
defendant, while on supervised release, possessed a controlled substance. Id.
3583(g)(1).
4

The Court determined Jacksons guidelines range, pursuant to guidelines

7B1.4(a), to be twelve to eighteen months imprisonment commensurate with a Grade
B violation and a criminal history category of IV.
5

The District Court had subject matter jurisdiction pursuant to 18 U.S.C. 3231
and 3583. We have jurisdiction under 18 U.S.C. 3742(a) and 28 U.S.C. 1291. We
review for abuse of discretion a district courts decision to revoke supervised release.
United States v. Maloney, 513 F.3d 350, 354 (3d Cir. 2008). In doing so, factual findings
in support of the decision are reviewed for clear error. Id. Questions of law, however,
are reviewed de novo. Id.
5

When a defendant violates his supervised release, the Court determines whether
the defendants conduct constituted a Grade A, Grade B, or Grade C violation, see supra
note 1, and sentences the defendant, if it concludes that the defendant is to be
incarcerated for his violation, to a term of imprisonment taking into account the
guidelines and factors set forth in 18 U.S.C. 3553. 18 U.S.C. 3583(e). It was under
that authority that the District Court in this case concluded that Jackson possessed
marijuana and cocaine, in violation of his supervised release, revoked his supervised
release, and sentenced him.
Jackson presents three arguments on appeal: (1) that, in violation of his right to
due process, he was not provided with sufficient notice that his conduct would constitute
a Grade B violation of his supervised release; (2) that the government failed to file an
information, in accordance with 21 U.S.C. 851, notifying him that his prior drug
conviction would be used to enhance his sentence; and (3) that a single positive drug test
cannot constitute a Grade B violation. None of his arguments is persuasive.
A.

Notice Required for a Supervised Release Violation

Jackson first argues that his due process rights were infringed because he was not
provided with sufficient notice that his conduct could be considered a Grade B violation.6

Jackson did not specifically object on due process grounds at the revocation
hearing, but did disagree with the District Courts determination that his positive drug test
was a Grade B violation based on the probation officers supplemental petition that
identified the positive drug test as a violation of the condition not to unlawfully use or
possess a controlled substance. The government contends that Jacksons failure to raise
his due process argument results in a waiver of that argument. Although an error not
properly preserved in the District Court is reviewed for plain error, United States v.
Albertson, 645 F.3d 191, 196 (3d Cir. 2011), we need not decide whether Jackson
6

The violation at issue is Jacksons positive drug test for marijuana and cocaine on
December 7, 2011. At the time of his original sentence in June 2007, Jackson received
written notice of the conditions of his supervised release, and he received notice again in
September 2011 when he was given the probation officers original petition regarding his
violations of supervised release, which contained a copy of the full list of his conditions
of supervised release. Those conditions were further reiterated in the probation officers
supplemental petition of December 15, 2011, that expressly identified Jacksons positive
drug test as a violation of the condition that he not possess a controlled substance and not
use a controlled substance.
With that notice in mind, Jackson does not claim that he was unaware that a
positive drug test would constitute a violation of supervised release. Rather, he claims
that, because the supplemental petition identified that violation as relating to the
condition of supervised release prohibiting the unlawful possession or use of a controlled
substance, he operated under the belief that that violation fit the category of a violation
of any other condition of supervision, U.S.S.G. 7B1.1(a)(3)(B), which would
constitute only a Grade C violation. He argues that he was unfairly surprised, therefore,
when the District Court concluded that his conduct constituted a crime punishable by
more than one year of imprisonment, which would be a Grade B violation, U.S.S.G.
7B1.1(a)(2). Thus, in Jacksons view, the petition failed to put him on notice that he
faced a potential Grade B violation, depriving him of due process.
properly preserved his due process argument because, as discussed herein, even assuming
that he did preserve the issue, there was no due process violation.
7

His argument fails because he seeks more process than he was due. What is
necessary to satisfy the demands of due process depends upon the nature and stage of the
criminal proceedings. In Morrissey v. Brewer, the Supreme Court held that a defendant
in a state parole revocation proceeding does not enjoy the full panoply of rights due to
a criminal defendant. 408 U.S. 471, 480 (1972). That diminished protection is justified
by the governments overwhelming interest in being able to return the individual to
imprisonment without the burden of a new adversary criminal trial if in fact he has failed
to abide by the conditions of his parole. Id. at 483. The rights announced in Morrissey,
and in Gagnon v. Scarpelli, 411 U.S. 778, 786 (1973), which adopted the rights from
Morrissey and applied them to federal probation, are codified in Federal Rule of Criminal
Procedure 32.1.7 Pertinent here, one of those requirements for minimal due process is

Rule 32.1 provides the procedural rules for revoking or modifying probation or
supervised release at the various stages of the process: the initial appearance, the
preliminary revocation hearing, the revocation hearing, and modification. Relevant here,
the procedure required at the revocation stage is as follows:
Unless waived by the person, the court must hold the revocation
hearing within a reasonable time in the district having jurisdiction.
The person is entitled to:
(A) written notice of the alleged violation;
(B) disclosure of the evidence against the person;
(C) an opportunity to appear, present evidence, and question
any adverse witness unless the court determines that the
interest of justice does not require the witness to appear;
(D) notice of the persons right to retain counsel or to request
that counsel be appointed if the person cannot obtain counsel;
and
(E) an opportunity to make a statement and present any
information in mitigation.
8

that the defendant be given written notice of the claimed violations of his supervised
release. See Morrissey, 408 U.S. at 489; see also Fed. R. Crim. P. 32.1(b)(2)(A).
Jacksons written notice complied with that due process requirement. He cannot
contend that he was unaware of the charge of possession of marijuana and cocaine. And
he cannot contend that he was unaware of the facts the government would use to prove
that charge that is, his positive drug test for both substances. Both the charge and the
facts the government would use to prove it were plainly stated in the supplemental
petition for revoking his supervised release. That notice was sufficient for Jackson to
prepare his defense and, thus, complied with the due process rights afforded him under
Morrissey and Scarpelli. See United States v. Sistrunk, 612 F.3d 988, 992 (8th Cir. 2010)
(For notice to be effective, it need only assure that the defendant understands the nature
of the alleged violation.).
He contends, however, that [t]he notice given to him through the violation
petitions was such that his alleged criminal conduct per the charges brought by the
Sharpsburg Police Department constituted Grade B violations and the positive drug
test constituted a Grade C violation. (Appellants Br. at 14-15.) Thus, he appears to
argue that the petitions themselves provided a clear indication of which grade each
violation constituted, but that argument is inaccurate and unavailing.
Neither petition submitted by the Probation Office indicated the grade of the
offense. Jackson perhaps reviewed the charges, and the underlying crimes, and believed

Fed. R. Crim. P. 32.1(b)(2)(A)-(E).

9

that his use of drugs amounted only to a Grade C violation. But he cannot rightly claim
that the petitions themselves were misleading about the grades of his violations.
Moreover, Jackson cites no authority for his proposition that, to satisfy due process, he
must be made aware of the grade of violation with which he is being charged. That is not
surprising, since the guidelines provide that the grade of a violation is related to the
conduct of the releasee, not necessarily the specific condition of supervised release the
defendant violated. See U.S.S.G. 7B1.1(a)(2) (providing that a Grade B violation is for
conduct constituting any other federal, state, or local offense punishable by a term of
imprisonment exceeding one year); id. 7B1.1 cmt. n.1 ([T]he grade of the violation is
to be based on the defendants actual conduct.). And there is no dispute that Jackson
was aware of the conduct testing positive for marijuana and cocaine that resulted in
his violation of supervised release.
At bottom, Jackson quibbles with the District Courts conclusion that his conduct
resulted in a Grade B violation, and with the fact that he did not foresee that possibility
based upon the charge that he possessed marijuana and cocaine. Yet his lack of foresight
is not a result of insufficient notice; Jackson received all the notice, and all the process,
he was due.
B.

The District Courts Reliance on Jacksons Prior Conviction in Finding a

Grade B Violation.

Jackson next argues that, in determining his sentence, the District Court erred
when it considered his prior drug conviction. He believes the Court could not take that
conviction into account because the government did not file an information identifying
10

prior convictions to be relied upon for enhanced sentencing pursuant to 21 U.S.C. 851.
Section 851, provides, in relevant part, as follows:
No person who stands convicted of an offense under this part
shall be sentenced to increased punishment by reason of one
or more prior convictions, unless before trial, or before entry
of a plea of guilty, the United States attorney files an
information with the court (and serves a copy of such
information on the person or counsel for the person) stating in
writing the previous convictions to be relied upon.
21 U.S.C. 851(a)(1). Jackson notes that the government did not submit a 851
information in this case, and, he says, because possession of cocaine is not punishable by
more than one year of imprisonment absent a prior drug conviction, see 21 U.S.C.
844(a), the District Court could not lawfully rely upon his prior conviction without a
851 information being on file. Again, his argument is unavailing.
By its plain language, 851 does not apply to supervised release proceedings.
That section applies when the government is pursuing a conviction and enhanced
sentencing, but Jackson faced a revocation hearing, not a trial. Rather than seeking a new
conviction, the government sought only to demonstrate by a preponderance of evidence
that Jacksons conduct violated terms of his supervised release. The guidelines policy
statements emphasize that a conviction is not required and that [t]he grade of the
violation does not depend upon the conduct that is the subject of criminal charges or of
which the defendant is convicted in a criminal proceeding. Rather, the grade of the
violation is to be based on the defendants actual conduct. U.S.S.G. 7B1.1 cmt. n.1.
Thus, it does not matter for purposes of supervised release whether or not the government
would have sought enhanced penalties if it had brought new criminal charges against
11

Jackson for his possession of marijuana and cocaine; it only matters what Jacksons
possible punishment was for his actual conduct.
It is clear that, because of his earlier drug conviction, Jacksons conduct was
punishable by more than one year of imprisonment. Moreover, although not squarely
addressing the 851 issue that Jackson presents to us, our sister courts have held that a
prior drug conviction may be used to raise a simple possession of a controlled
substance violation from a Grade C to a Grade B violation as conduct violating federal
law punishable by more than one year of imprisonment. See United States v. Trotter, 270
F.3d 1150, 1154 (7th Cir. 2001) (concluding that when deciding whether a defendants
conduct is punishable by more than one year of imprisonment courts must determine
whether the conduct is a felony (etc.) after prior convictions are taken into account);
United States v. Crace, 207 F.3d 833, 838 (6th Cir. 2000) (permitting court to take into
account prior convictions when determining if a defendants conduct constituted a Grade
B violation); cf. United States v. Bungar, 478 F.3d 540, 544 (3d Cir. 2007) (explaining
there was no dispute defendants possession of cocaine could be considered a Grade B
violation).
C.

Whether a Single Positive Drug Test Is a Grade B Violation

Jacksons final argument is that the District Court erred in concluding that a single
positive drug test was a Grade B violation and not a Grade C violation. In support, he
cites to United States v. Blackston, 940 F.2d 877 (3d Cir. 1991).
In that case, we held that it was not clear error for a district court to conclude, in
the presence of a positive drug test, that a defendant possessed the drug prior to using it.
12

Id. at 879. We recognized, in other words, that a positive drug test can be circumstantial
evidence of possession. Id. at 891. And, we said, if a court finds such circumstantial
evidence sufficient to conclude that there was possession, then 18 U.S.C. 3583(g)8
requires revocation of supervised released. Id. at 892-93. We were clear, however, that a
positive drug test did not require revocation of supervised release under 3583(g) if the
court did not find the circumstantial evidence of drug use sufficient to demonstrate
possession. Id. at 891.
Jackson believes that Blackston stands for the proposition that possession of a
controlled substance does not equate with a Grade B violation and instead [is] a Grade C
violation[,] as Blackston held that the revocation of supervised release is not required as
the result of a positive drug test. (Appellants Br. at 20.) That flexibility to not revoke
supervised release for a positive drug test is significant, Jackson seems to argue, because
the guidelines provide that a Grade B violation results in mandatory revocation of
supervised release, but a Grade C violation does not. U.S.S.G. 7B1.3(a).
Jackson misapprehends Blackstons holding. His confusion apparently stems from
the statement in Blackston that revocation of supervised release is not required every
time a defendant tests positive for drug use. 940 F.2d at 879. But, in the context of

At the time of Blackston, 3583(g) provided that if the defendant is found to be

in possession of a controlled substance, the district court is required to terminate
supervised release and sentence the defendant to a period of incarceration of at least onethird of the term of supervised release. Blackston, 940 F.2d at 879 n.2 (internal
quotation marks omitted). The current version of 3583 also requires mandatory
revocation of supervised release for possession of a controlled substance, but does not set
the minimum period of incarceration. 18 U.S.C. 3583(g)(1).
13

Blackston, that language simply confirms that a positive drug test is only circumstantial
evidence of possession and does not ipso facto require the court to conclude that a
defendant did possess a controlled substance. A district court could conclude that a
positive drug test was insufficient to show possession.9
In this case, Jacksons counsel conceded that a positive drug test indicated at least
simple possession. (See App. at 23 (I dont know that his testing positive for marijuana
or cocaine would constitute an offense punishable by a term of imprisonment exceeding
one year. I believe it would be simple possession .). And Jackson does not contest
on appeal the District Courts conclusion that he possessed marijuana and cocaine. He
argues instead that his simple possession should not be a Grade B violation. His
argument, however, misses the point.
Whether or not a person with no prior drug convictions, and hence not subject, as
Jackson is, to a term of imprisonment of more than one year for again possessing drugs,

Indeed, Blackston does not stand for the proposition that a single positive drug
test is a Grade C violation as Jackson proposes. Blackston instead states:
A single positive urinalysis is a poor indicator of whether supervised
release is working for the defendant. For many of the defendants who, at
one time or another, test positive for drug use, treatment and rehabilitation
continue to make more sense than do revocation and imprisonment. Our
decision today, we believe, affords district courts sufficient flexibility to
take these factors into account and to consider what is best for the
defendant and society.
940 F.2d at 892 n.24. That language in no way precludes a district court from finding a
Grade B violation in the presence of a single positive drug test, if the district court
concludes that, based upon that positive test, a defendant with a prior drug conviction
again possessed a controlled substance.
14

18 U.S.C. 844(a), might qualify for a Grade C violation rather than a Grade B violation
is a question we need not address. Here, the District Court classified Jacksons conduct
as a Grade B violation because it was simple possession by a defendant that had a prior
drug conviction. It was that prior conviction that made Jacksons conduct punishable by
more than one year of imprisonment under 18 U.S.C. 844(a) and, as a result, a Grade B
violation.10 The District Court did not err in that conclusion.
III.

Conclusion
For the above reasons, we will affirm the sentence of the District Court.

10

As Jackson acknowledges in his brief, we have precedent that equates drug use
to possession and a Grade B violation for a repeat offender, and have thus mandated
revocation and incarceration under 18 U.S.C. 3583(g). Bungar, 478 F.3d at 544. Other
circuits have also held that positive drug tests may equate to simple possession and a
Grade B violation for repeat drug offenders. See Crace, 207 F.3d at 835 (concluding that
a single positive drug test was evidence of possession and that the District Court did not
err in holding defendant to Grade B violation of supervised release); see also Trotter, 270
F.3d at 1153-54 (collecting cases and citing Blackston).
15